The (now deleted) Tweet was removed on fairness grounds
In September 2021, Middlesbrough football player Marc Bola was charged with misconduct by the Football Association (FA) for an Aggravated Breach of FA Rule E3(1). The charge related to Tweet that he had posted on his Twitter account nearly ten years earlier, in 2012, when he was just 14 years old. The Tweet was subsequently deleted.
The player immediately accepted his wrongdoing and apologised for his actions as a teenager. There was a hearing before the FA Regulatory Commission to deal with sanction. Following that hearing, the FA Regulatory Commission accepted that the player posted the offending Tweet when he was a very young man and that the sentiment expressed in the Tweet in no way reflected the mature player now to be sanctioned. It was accepted that the post was the “polar opposite” to his present attitude to life and other individuals.
In November 2021, the Commission circulated its Written Reasons to the parties in relation to the sanction, which included a copy of the Tweet concerned. All FA participants taking part in any Regulatory Commission acknowledge that reports of decisions will be published as required by FA Disciplinary Regulation 18.
Mr Bola made an application that the Written Reasons be redacted or edited before publication by the FA – specifically, to remove a copy of the Tweet.
At a second hearing before the FA Regulatory Commission, at which Christina Michalos QC appeared for Mr Bola, it was argued on his behalf that the effect of publishing the detail of the Tweet (written many years ago, when he was a child) would be disproportionate to the competing transparency need to publish Written Reasons in full.
It was contended that publication of the detail of the Tweet would inevitably result in a social media ‘pile on’ of offensively acrimonious comment, portraying him publicly in way wholly inconsistent with the Commission’s findings. The Commission accepted that it would be both incorrect and naive to conclude that an adverse public reaction, in part at least, was not to be expected.
In its Decision following the second hearing, the Regulatory Commission declined to a make a ruling on the applicability of Article 8 rights to reputation and a private life. It was held that there was a balance to be struck between the competing interests of the Player and the FA’s expectation to full publication to ensure that the proceedings remained “just and fair to all parties”.
The Commission concluded that fairness to both parties could be met by editing the precise wording of the Tweet from the Written Reasons, leaving sufficient detail for those reading the Reasons to be able to understand the context and reasoning of the Commission’s approach to sanction.
5RB’s Christina Michalos QC acted for Mr Bola at the second hearing and was instructed by John Shea of Lewis Silkin LLP.
The FA‘s press release (with links to the published Decision), here.